The importance of alienability

A right is said to be inalienable if it cannot be taken away or given up. Jefferson may have been thinking both of the rights to life, liberty and the pursuit of happiness being taken away and the notion that the American colonists had willingly given them up when he wrote about their “unalienability” in the US Declaration of Independence.

But while we tend to think of inalienable legal rights as being the most strong and fundamental ones, often rights are much more valuable if they are alienable – if we can give them up. Being able to give up a right, for example by selling it, makes it more like a piece of property. An artist who can alienate their right to a copyrighted creation by selling the rights permanently can earn more than if they may only lease the rights for a period – and this is still a degree of alienation compared to if she could not give up her rights at all. As a result, we should expect markets to emerge for alienable rights, but not inalienable ones, and to be somewhat tenuous for rights that exist in a grey area.

This is not an abstract point. The GDPR (General Data Protection Regulation), for example, gives Europeans a strong inalienable right to choose how “their data” (more accurately thought of as “data that is about them”) is used. After giving a business the right to use their data, Europeans may generally revoke access at any time in future for any reason. They cannot alienate their rights over this data, no matter how much someone might want to pay them.

This actually means it’s harder for people to be “paid for their data”, as some advocates of the GDPR say they want. Imagine if book authors could withdraw the right to use their copyright at any time from people they had sold the rights to: the inability to sign away their rights would make it much harder for them to effectively do business with publishers, because publishers would always face the risk that they would lose both their money and the rights they thought they were buying.

If you made it possible for people to properly alienate their rights over their data, a market in user data might actually emerge. Until then, there will be a “missing market” where there are people who are both willing to sell and willing to buy, prevented by inalienability.

Alienability as a necessary condition for bargaining is at the root of the idea of “street votes” in land-use planning, proposed by the group London YIMBY (“Yes In My Back Yard”). In the UK and some other countries people can veto new housing developments near them either directly, by objecting when they seek planning permission, or indirectly, by lobbying local politicians. They cannot give up their right to do these things – it is inalienable – so, like the author who can never credibly sell the rights to their book, they cannot easily “sell” their objections to new developments, and there are strict rules against local government auctioning it on their behalf.

The result is another missing market, and likely far less development than would be optimal from the point of view of nearly every single person involved. If a new construction was valuable enough that the proceeds could be used to buy the willing participation of everyone affected by it, then with a well-functioning market for consent, almost everyone could be made better off.

There are, of course, many obstacles to such a market from emerging in the real world, including the challenge of bargaining with every person affected. “Street votes”, which allow people on city streets to vote to change the rules on their street, are intended as a way of narrowing veto rights to smaller groups of people (the residents of a city street) and allowing them to alienate their rights en masse by voting for new rules that are veto-proof. Rather than a would-be developer paying them directly to do so, the “payment” would take the form of the uplift in the value of their property: urban land that you can build a six-storey apartment block on is worth considerably more than land that you may only build a two-bedroom house on.

Inalienable rights are deadly. You cannot alienate your right to your kidney – it is simply illegal to sell one no matter how much you’d like to, even though this could increase supply from willing donors and save lives. You cannot risk alienating your right to life by being paid to do a human challenge trial for Covid-19, where people are purposely infecting people who have been given candidate vaccines with the virus, even though accelerating the development of a vaccine could save millions of lives.

In many cases we may have drawn these lines in exactly the right places. But it is possible that in things like people’s data rights, their rights over their bodies, and even certain political rights, there are things that are inalienable that should not be. Sometimes, it may be best if we can give up our rights.

This post stands on the shoulders of Ronald Coase, Armen Alchian, John Myers, Ben Hooper and Peter Jaworski, among others. I hope I’ve done their ideas justice!


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Two things I recommend you buy

Please note that I use Amazon affiliate links for these out of greed.

Sin&Mi Desk Lamp (£10.99)

I have been doing a lot of calls this year on a Macbook with a very bad webcam. In general, I look terrible. The only solution I have found is a bright LED light. This one is cheap, bright and much lighter than any of the circular ‘influencer lights’ I have seen others using. I shine it directly at my face, which might be bad for my eyes, but makes me look great.

Mekeet Silicone Toilet Brush (£10.99)

Traditional toilet brushes with stiff plastic bristles are disgusting: they get dirty, can splash toilet water back onto your face as you use them, and carry dirty water back into their holders. Ugh. This one is much better: it has thick, soft bristles made of silicone that carry less water and dirt and do a better job of cleaning. My thanks to Flo for getting this one for the house.